Module 3: Residents' Rights

Overview

As an ombudsman, you not only have an obligation to provide information about residents’ rights, but also a further obligation to assist residents in exercising those rights. This module will provide an understanding of residents’ rights and the roles of Long-term Care Ombudsmen in supporting residents in exercising their rights. It provides a way of thinking about residents’ rights and an approach for ombudsman work regardless of the specific issue.

Learning Objectives: At the conclusion of this module, individuals will know:

• • The principles underlying residents' rights;

  • Specific residents' rights provisions;

  • How residents can be encouraged and supported in exercising their rights; and

  • The role of the LTCO.

NOTE: While the ombudsman process and approach is very much the same regardless of where a resident lives, the tools that are available in terms of law and regulation are not. Much of this module references federal law and regulation, but it is important to note that these laws and regulations are applicable only to nursing facilities that accept Medicaid or Medicare. There is no comparable federal law or regulation for adult residential care settings, such as assisted living facilities. You must rely solely on state law and regulation for adult residential care settings and for nursing homes that do not accept Medicaid or Medicare.

Duration: 1.5 hours

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SECTION 1: Empowerment

As an ombudsman, empowerment needs to be your primary way of relating to individuals. Empowerment is the foundation of your work. You are always seeking to enable others to speak up on their own behalf and to have direct, responsive communication with other residents, family members and staff. This section discusses dimensions of empowerment and your role in empowering others.

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SECTION 2: Nursing Home Residents' Rights Under the Nursing Home Reform Law

Certain rights are set forth in the United States Constitution for all citizens. Individuals who live in long-term care facilities do not lose these rights when they enter a congregate living environment. In fact, they are guaranteed additional rights under state and federal laws specific to their status as residents! These rights are provided for primarily in the following sources:

• • Federal Nursing Home Reform Law: The Omnibus Budget Reconciliation Act of 1987 (OBRA ’87), as amended, Medicaid Provisions (1396r), and Medicare Provisions (1395i-3).

  • Federal Regulation: Medicare and Medicaid Requirements for Long Term Care Facilities, September 26, 1991, 42 U.S. Code of Federal Regulation, (483).

  • State Laws

This section will discuss the key provisions and basic themes around Residents' Rights in Federal Law. Click here to read more.

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SECTION 3: Summary Listing of Rights

The following is a summary listing of the provisions of residents’ rights for individuals living in nursing facilities certified for Medicare or Medicaid. Although they are often mirrored in state law, the rights presented here are based on federal law and regulation. Their purpose is to safeguard and promote dignity, choice and self-determination of residents. The citations refer to the federal Requirements for Long-Term Care Facilities.

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SECTION 4: Discussion of Selected Rights

This section contains a detailed discussion of some of the residents’ rights that are frequently problematic. In some instances, the discussion includes tips for ombudsman practice. Be sure to check the exact language of the applicable law before providing specific information or pursuing complaints. The citations refer to the federal Requirements of Long-Term Care facilities.

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1. Privacy and Self-Determination

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Tips for Ombudsman Practice:

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2. Participation in Planning and Treatment

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Tips for Ombudsman Practice:

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3. Freedom from Restraints

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Tips for Ombudsman Practice:

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Tips for Ombudsman Practice:

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5. Protection Against Medicaid Discrimination and Abuse, Neglect, and Exploitation.

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Tips for Ombudsman Practice:

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SECTION 5: Enforcement of Resident's Rights

This section discusses some alternatives available to enforce residents' rights in nursing homes.

Federal Survey and Certification Process

The federal survey and certification process under Medicaid is the primary mechanism established for the enforcement of residents’ rights. Having residents’ rights as part of the federal law gives new emphasis to the rights in enforcement.

However, enforcement is hampered by a lack of understanding and sensitivity to residents’ rights by surveyors. Even when surveyors are sensitive to residents’ rights, they find them hard to quantify compared with other regulations. Violations are hard to document and hard to prove, and surveyors often fail to understand their seriousness. Correction is difficult to monitor.

The use of resident interviews in the survey process helps sensitize surveyors to residents’ rights issues and provides more opportunities for them to observe, learn about, and document violations. Some LTCO Programs have developed brochures for residents and families on how to participate in the survey process. These contain an explanation of the process, how to contact surveyors, and preparing for an interview with a surveyor.

Residents’ Rights Specific Penalties

Some states have incorporated nursing home residents’ rights into the monetary penalties systems and levy fines for violations. The fine amounts vary and the violations can be difficult to prove. Collecting fines can also be difficult because of a lack of legal support for such actions and because of overwhelming appeal rights given to facilities in most states.

Other Use of the Courts

Advocates have gone to court successfully for restraining orders and injunctions to prevent transfers. Residents have also brought nursing homes to small claims court over lost or stolen possessions and won monetary awards based on facilities' negligence in failing to protect items. The downside is that legal recourse requires proof of damages. It also requires resources and stamina; however, it can be quite effective.

SECTION 6: Strengthening Residents' Rights

There are several basic reasons why many residents are unable to address problems on their own:

• • Many residents are unaware of their rights or are unaware of what facilities are required to do.

  • Even if they know their rights, many residents are unable to work through the complexities of a problem-solving process because of physical and/or mental limitations or because of a lack of support.

  • The process of solving a problem may seem overwhelming.

  • Institutional factors, such as isolation, lack of power, and resistance to change can make it difficult for a resident to resolve a problem without assistance.

Three measures that are especially useful in helping residents exercise their rights are discussed in this section: empowering the individual resident, working with resident councils, and working with family councils. The tables below can be used with each of these groups to help explain some common impediments to exercising residents’ rights and to find ways to overcome them.

Table 1 lists a number of the reasons residents are reluctant to assert their rights on their own behalf.

Table 2 lists other obstacles that further impede implementation of residents' rights.

Table 3 lists other obstacles that further impede implementation of residents' rights.

SECTION 7: Resident Councils

Resident councils are organizations within the nursing home or assisted living facility whose members are residents of the home. All residents of the home can participate just by the fact that they reside within the facility. Usually, residents who are able, speak up for those who cannot. Every resident council is different, due to differences in both the residents who participate and in the level of support and responsiveness from the facility.

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Tips for Ombudsman Practice:

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For more resources on resident councils, visit the Consumer Voice Resident Council Center.

SECTION 8: Family Councils

Family councils are groups that meet regularly and whose membership includes family and friends of residents. They provide a needed link to the world outside of the facility for residents. Family Councils are especially valuable in the small, assisted living facilities where residents may be hesitant to voice concerns. They can be a buffer for residents having problems with the homes’ administration and can provide an oversight from the community that is invaluable.

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For more resources on family councils, visit the Consumer Voice Family Council Center.

SECTION 9: Legal Protections: Decision-Making Mechanisms

Advances in health care and unprecedented growth in the number of Americans living to very old age continue to create important new challenges for our society. Principal among these is that modern medical care can extend some individuals’ lives beyond the point where they are capable of making decisions or expressing their needs and desires. This section discusses various legal mechanisms to protect an individual’s self-determination to the greatest extent possible.

All of the mechanisms discussed are created in state statutes, except for representative payee and the Patient Self-Determination Act. Therefore, mechanisms for establishing power of attorney and guardianship may function differently from state to state.

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Tips for Ombudsman Practice:

As a LTCO, it is important for you to know the differences in the various types of decision-making mechanisms available in your state. Your role is to model residents’ rights. One primary way is to support each resident’s right to make decisions and to participate in planning their care and treatment. More information about how to do this is discussed in the problem-solving section of the curriculum materials. Ombudsman skills in this area will be continually refined through working on cases and additional training. A few basic tips for practice follow.

ADDITIONAL RESOURCES

• Federal Residents’ Rights Provisions

• Assessment and Care Planning: THE KEY TO GOOD CARE

• Physical Restraint Free Care

• Basics of Individualized Care

Review Quiz

Click on your state or territory in the list below to take the Review Quiz.